Con Law Flashcards
1
Q
Standards of Review - Strict Scrutiny
A
Necessary to achieve a compelling government purpose (burden on the government)
2
Q
Standards of Review - Intermediate Scrutiny
A
Substantially related to an important government purpose (burden on the government)
3
Q
Standards of Review - Rational Basis
A
Rationally related to some legitimate government purpose
4
Q
Standing definition
A
Article III requires that a plaintiff have standing to sue before a constitutional challenge can be made
5
Q
Standing Requirements
A
A plaintiff has standing if:
(1) she has suffered an injury
**Injury - the plaintiff must allege or prove that she was injured or imminently will be injured
(2) That is redressable by a favorable court decision, and
**Redressability - To be redressable, a court decision in plaintiff’s favor must be capable of eliminating the harm.
(3) Was caused by the act being challenged
**Causation: there must be a causal connection between the injury and the state action
6
Q
Organizational Standing
A
An organization has standing when:
(1) there is an injury to a member which gives them a right to sue on their own behalf (ie member must have actually violated the statute)
(2) The injury is related to the organization’s purpose, and
(3) Participation of individual members of the organization is not required
7
Q
Third Party Standing
A
A claimant may have standing to assert the rights of a third party if:
(1) it is difficult for the third party to assert his or her own rights, or
(2) A special relationship exists between the claimant and the third party
8
Q
Taxpayer standing or citizen standing
A
A person does not have standing merely as a taxpayer or citizen of the US because their interest is too remote.
Exceptions - Taxpayers have standing if:
(1) the constitutional challenge relates to a tax bill they paid under protest, OR
(2) The constitutional challenge is based on the Establishment Clause of the First Amendment where the government exercised its spending power
9
Q
Standing to enforce governmental statutes
A
A Plaintiff may have standing to enforce a governmental statute if she is within the zone of interests the statute’s purpose is to protect.
10
Q
State Action
A
The Constitution does not provide a means of redress for private wrongs. State Action must be present in order for an individual to vindicate her constitutional rights. State action can be found in actions of private individuals who:
(1) Perform exclusive functions OR
(2) Have significant state involvement
11
Q
Justiciability
A
Federal courts may address cases and controversies so long as there is standing, state action, and other limitations are not present.
12
Q
Justiciability - (1) Ripeness
A
A case is not yet ripe if there is no immediate threat of harm
P is entitled to pre-enforcement review of a statute or regulation if:
(i) P will suffer some harm or immediate threat of harm, and
(ii) There are sufficient issues/records for judicial review which is determined by looking at whether a case was even filed
13
Q
Justiciability - Advisory Opinions
A
A federal court may not render an advisory opinion. The parties must show:
(1) they have engaged in or wish to engage in specific conduct, and
(2) that the challenged action poses a real and immediate danger to their interests
14
Q
Justiciability - Abstention
A
A federal court will abstain from hearing a constitutional claim if based on an unsettled question of state law.
15
Q
Justiciability - Mootness
A
A case is moot if there is no longer any immediate threat of harm, unless the controversy:
(1) is capable of repetition yet evades review
(2) involves a class action in which at least one member still has a viable claim, or
(3) involves a defendant who voluntarily ceases harm but is free to resume at any time
16
Q
Justiciability - Political Question
A
Political questions are not justiciable if they are either:
(1) textually demonstrably constitutionally committed to another branch of government, OR
(2) Inherently incapable of judicial resolution
17
Q
Tenth Amendment
A
All powers not granted to the federal government, nor prohibited by the states, are reserved to the states or the people.
18
Q
Eleventh Amendment
A
The 11th amendment provides sovereign immunity to the states so a federal court may not hear a private party’s claims against a state government, unless:
(1) state expressly consents and waives immunity
(2) action is against a state officer but does not involve payment of damages out of state funds, or
**Federal courts may not hear claims for damages against a state but they may hear a claim where the remedy being sought is an injunction
(3) Congress removes immunity to prevent discrimination under the 14th amendment.
19
Q
I. Legislative Powers
Congressional Authority
A
Congress can exercise those powers enumerated in Article 1, Section 8 of the Constitution, and all auxiliary powers necessary and proper to carry out all power vested in the federal government including:
(1) Spending Power,
(2) Taxing Power,
(3) War Power,
(4) Property Power,
(5) Investigatory Power,
(6) Citizenship Power,
(7) Bankruptcy Power,
(8) Postal Power,
(9) Admiralty Power,
(10) Power to coin/money
(11) Patent and Copyright Power
(12) Commerce Clause
(13) Congressional Enforcement of Civil Rights
20
Q
Spending Power
A
Congress may spend for any public purpose for the common defense and general welfare of the public
21
Q
Taxing Power
A
Congress may tax so long as it bears some reasonable relationship to raising revenue and Congress can regulate the activity taxes
22
Q
War Power
A
Congress has the exclusive power to declare war and appropriate money to raise the military
23
Q
Property power
A
Congress has the power over properties of the US (including Washington DC), which includes the right to tax real property. Congress can also take property for public use called eminent domain. Congress can protect federal lands, which includes the right to protect wildlife on that land.
24
Q
Investigatory power
A
congress can investigate anything it has power to legislate over
25
Citizenship power
congress can establish uniform rules of naturalization
26
Bankruptcy power
congress has the power to establish uniform rules for bankruptcy
27
Postal power
Congress has the power to validly classify and place reasonable restrictions on the use of the mail system
28
Admiralty power
Congress' admiralty power is plenary and exclusive
29
Power to coin/money
Congress has the power to coin money and fix the standards for weights and measures
30
Patent and copyright power
Congress has the power to control the issuance of patents and copyrights
31
Commerce clause power
congress has the exclusive power to regulate all foreign and interstate commerce, including channels, instrumentalities, and activities that affect interstate commerce. If congress attempts to regulate intrastate actvitity, the law will only be upheld if:
(1) it is an economic or commercial activity that, in the aggregate,
(2) Substantially affects interstate commerce
32
Congressional enforcement of civil rights
Congress has special powers to pass "appropriate legislation" to enforce post-civil war amendments
33
Limits on Congress' authority to act
(1) no federal police power, (2) 10th amendment (commandeering the states), (3) Delegation power, (4) speech and debate clause, (5) legislative vetoes of executive actions
34
Limits - (1) No federal Police Power
Congress does not have a general police power except in military bases, indian reservations, federal lands, and the District of Columbia
(MILD)
35
Limits - (3) Delegation Power
Congress may delegate authority to the executive or judicial branch so long as it provides intelligible standards.
36
Limits - (4) Speech and Debate clause
speech and conduct occurring in the regular course of the legislative process are immune from prosecution
37
Limits - (5) Legislative vetoes of executive actions
A legislative veto is an attempt by congress to overturn an executive agency action without passage by both houses of congress or without giving the bill to the President for his signature or veto is invalid
38
Limits - (2) 10th Amendment (Commandeering the states)
Congress cannot commandeer the states by compelling state regulatory or legislative action. Even if there is a federal statute on point, states are not required to pass identical legislation to that federal law to be constitutional.
39
Executive domestic powers
Appointment power, removal power, pardon power, veto power, executive order power, take care clause
40
Appointment power
President has power to appoint all ambassadors, USSC justices and consuls with Senate approval. Congress may vest appointments of inferior offices with the President. Congress may not give itself or its officers the appointment power.
41
Removal power
Unless removal is limited by statute, the President may remove any executive branch officer without cause. Congress may not prohibit it but may limit removal IF:
(1) independence from the president is desirable for that particular office, and
(2) removal is based on good cause
42
Pardon power
The President has the right to grant pardons for those convicted of federal crimes or state offense but not for impeachment or civil contempt
43
Veto Power
The president can veto acts of Congress but the veto can be overridden by a 2/3 vote of each house. If president does not veto OR sign the bill within 10 days of receiving it, it becomes law.
44
Veto power - pocket veto
a veto that becomes effective when the President fails to sign a bill after Congress has adjourned during the 10 day period (this is an absolute veto and cannot be overridden)
45
Veto power - line item veto
President cannot veto parts of a law and approve other parts of the law
46
Executive order power
President may make proclamations and executive orders that all courts of the US must recognize. The President's power to enact executive orders depends on whether Congress granted authority, is silent, or has denied authority.
47
Exec order power - Express or impliedly granted authority
If congress expressly or impliedly granted authority, the presidential powers are at a maximum and her actions are likely valid
48
Exec order power - Silent
If congress is silent the president's actions will be valid unless it usurps power from another branch
49
Exec order power - denied authoirty
if congress denied authoirty, president's actions are likely invalid
50
take care clause
the president "shall take care that the laws be faithfully executed." The president has no power to refuse to spend appropriated funds when Congress expressly mandates they be spent.
51
Foreign powers
The President is the Commander in Chief and has the paramount power to represent the US in day-to-day foreign relations.
(1) Treaty power
(2) executive agreements
(3) war power
52
Treaty power
The president has the power to enter into treaties with other countries. The treaty becomes effective when it is ratified by 2/3 consent of the Senate.
Treaty - conflict of laws:
*if a treaty conflicts with state law, the state law is invalid
*if a treaty conflicts with federal law, the last enacted controls.
*if a treaty conflicts with the Constitution, the treaty is invalid.
53
Foreign power - Executive agreements
The president may make agreements with foreign heads of state without Senate consent
Executive agreement - conflict of laws
*if EA conflicts with state law, state law is invalid
*IF EA conflicts with federal law, the EA is invalid
54
War Power
President cannot declare war but can deploy armies
55
Executive Privilege
The President has the right to keep presidential communications privileged or secret (this includes documents and conversations), EXCEPT for criminal prosecutions when a need for such information is demonstrated
56
Executive Immunity
The president has absolute immunity from civil suits with regard to any acts performed as part of official presidential responsibilities, EXCEPT for wrongs/actions committed before taking office (Jones v. Clinton)
*Designated functions: Immunity is intended only to enable President to perform his "designated functions" without fear of personal liability
57
Impeachment
The president, Vice President, and civil officers are subject to impeachment for bribery, treason, and high crimes
*Majority Vote in House is necessary for impeachment
*Majority Vote in Senate is necessary to convict and remove
58
Federalism - Preemption and Supremacy Clause
When state and federal governments pass legislation on the same subject matter, the Constitution provides that the federal law is the supreme law of the land, and any conflicting state law will be deemed invalid, by express preemption or implied preemption.
59
Federalism - Express Preemption
Occurs if a federal statute expressly says that the federal law is exclusive.
60
Federalism - Implied Preemption
occurs either:
(1) if federal and state laws are mutually exclusive
(2) state law impedes the achievement of a federal objective, or
(3) congress evidences a clear intent to occupy the field, which can be shown by any of the following factors:
(a) comprehensive federal scheme
(b) Creation of an agency to administer the laws
(c) Historically federally-regulated subject matter, or
(d) there is a need for uniform national regulation
61
Federalism - Full Faith and Credit Clause
Applicable to state governments only
Full faith and credit must be given and recognized by sister states if:
(1) the court had jdx over the subject matter and the parties
(2) the judgment was on the merits, and
(3) the judgment was final
62
Federalism - Taxation/Regulation Issues (applicable to federal and state governments)
Federal taxation and regulation of state entities are valid if:
(1) it applies to both the public and private sector (ie minimum wage laws), and
(2) it applies to both national and state activities
**Exceptions: (1) civil rights and (2) conditions on federal grants where states have the option to accept or decline the federal grant
63
Federalism - Taxation/Regulation Issues (applicable to federal and state governments) - State taxation of the federal gov is permitted so long as it isL
(1) a nondiscriminatory and indirect tax
(2) that does not unreasonably burden the federal gov's activities or policies (ie state tax on federal workers' wages are okay)
64
Commerce Approach
Apply rule above
65
Dormant Commerce Clause
Where congress is silent states are free to regulate interstate commerce so long as they do not:
(1) Directly discriminate against out of state commerce, or
(2) Unduly burden interstate commerce
66
DCC - Direct discrimination under step 1
Direct Discrimination - a law that discriminates against out of state interests by preferring local interests is presumed invalid, unless:
(1) it furthers an important non-economic interest, and
(2) no reasonable alternatives are available, or
(3) The state prefers its own citizens when acting as a market participant, including buying or selling products, hiring labor or giving subsidies
67
DCC - Undue burden
Even if the law is not discriminatory, the state law may still be invalid if the burden on interstate commerce outweighs the local interest protected.
68
Privileges and Immunities Clauses (applicable to state gov only) - P and I of Article IV (residents v non-residents)
(1) A state cannot discriminate against non-residents (not applicable to aliens or corps)
(2) based on their fundamental rights involving civil or commercial liberties,
(3) unless it can show:
(i) a substantial justification for the differential treatment (state must show that non-residents are the cause or part of the problem to be solved), and (ii) that no less restrictive means were available
69
P&I of the 14th Amendment (resident v. national citizens)
14th Am provides that states may not deny their citizens the privileges and immunities of national citizenship (ie the right to interstate travel, vote for national offices, peaceably assemble)
70
Contracts Clause (applicable to state govs only)
The K clause prohibits states from enacting legislation that retroactively interferes with existing contractual relationships. Legislation that impairs a private K is invalid, unless the law:
(1) Serves an important and legitimate interest, and
(2) is a reasonable and narrowly tailored means of promoting that interest
71
Ex Post Facto Laws (applicable to state govs only)
A state cannot retroactively change criminal laws if it:
(1) makes criminal an act that was innocent when done
(2) prescribes greater punishment than when the act was done
(3) reduces the evidence required to convict a person from when the act was done.
72
Bills of Attainder (applicable to federal and state governments)
A legislative order to criminally punish someone, without a trial, is prohibited
73
Taxation
The Commerce clause grants the federal gov the power to authorize or forbid state taxation affecting interstate commerce. If Congress has not acted, the state may tax commerce so long as it does not discriminate against interstate commerce.
74
If the tax does not discriminate against interstate commerce
We must assess whether the burden on interstate commerce outweighs the benefit to the state by applying a three-part test:
(1) There must be a substantial nexus between the taxpayer and the state
(2) the tax is fairly apportioned according to a rational formula, and
(3) the tax is fairly related to the services or benefits provided by the state
**
75
Taxation - commodities
In interstate transit may not be taxes along the way, except for where they start and where they begin
76
Instrumentalities may be taxed if:
(i) they have a taxable situs in the state, and (ii) the tax is fairly apportioned (ie big users pay more than smaller users)
77
Thirteenth, 14th, and 15th Amendments
Congress has the power to pass appropriate legislation to enforce post Civil war amendments which are the 13th, 14th, and 15h amendments to the constitution
78
13th Amendment
Congress has the power to:
(1) adopt legislation rationally related to eliminating racial discrimination
(2) Legislate against slavery, involuntary servitude, and remove "the badges and incidences of slavery," and
(3) regulate government and private action to eliminate racial discrimination
79
14th Am
Under 14th Am, Section five's enabling clause, Congress has the power to pass legislation requiring states to provide due process, equal protection, and the privileges and immunities under the law
80
15th AM
Under 15th Am, states are barred from denying voting rights on the basis of race, color, or previous condition of servitude.
81
Equal Protection Clause Approach
I. State Action (not federal)
II. Standing (Injury in fact, causation, damages) **Watch for 3P and Organizational standing
III. Rule: Treats classes or persons differently
IV. Discriminatory Intent (3 ways: facial, application, disproportionate impact)
V. Identify Classification (Fundamental right, suspect, quasi, OR other)
VI. Apply level of scrutiny
82
EPC Def
The EPC through the 14th AM requires state laws to apply equally to everyone; thus it is violated when a state law treats a person or class of persons differently from everyone else.
83
Discriminatory Intent
P must show that there was discriminatory intent in enacting the law by showing either:
(1) the law is discriminatory on its face
(2) it's a facially neutral law but has discriminatory application, OR
(3) it's a facially neutral law that is neutral in application but has a disproportionate impact on a particular class of persons
**if a law is both facially neutral and neutral in application but has a discriminatory effect, a court must find the law-making body enacted or maintained the law for a discriminatory purpose in order for the law to be invalid.
84
Classification
If a fundamental right or suspect classification is involved, SS applies. If a quasi-suspect classification is involved, intermediate scrutiny applies. All other classifications are subject to rational basis
85
Classification - fundamental rights
SS applies
Right to interstate travel, right to vote, first amendmenet rights, seventh amendment right to jury trial, fifth through 14th am right to life, liberty, property, right to privacy (marriage, use of contraceptives, abortion, sexual relations, right to raise one's children in a certain way, right to read obscene material in one's home)
86
Classification - suspect class
SS applies
Race, national origin, legal aliens (exception: legal aliens' participation in gov processes/public policy invokes rational basis), piece of legislation involving national security
87
Classification - quasi-suspect class
IS applies
Gender (gov must show "exceedingly persuasive justification" for the law), legitimacy, education for illegal alien children)
88
Other classes
RB applies
Undocumented aliens, age, disability, wealth
89
Strict scrutiny
The gov must prove the state action is necessary to achieve a compelling gov purpose
90
Intermediate scrutiny
The gov must prove the state action is substantially related to an important gov purpose
91
Rational basis
The challenger must prove the state action is NOT rationally related to a legitimate gov purpose
92
Procedural Due Process appraoch
I. State Action
II. Standing
III. Rule
IV. Deprivation of life, liberty, OR property interest
V. Level of Process Due (balancing test)
93
Procedural Due Process
The DPC of 5th Am provides that the governmetn cannot take away someone's life, liberty or property without due process of law. The DPC is applicable to the states via the 14th Am. A fair process (ie notice and hearing) is required for the gov to intentionally take away one's life, liberty, or property
94
Procedural Due Process - deprivation of liberty
occurs if a person loses significant freedom of action or is denied a freedom provided by the constitution or statute
95
Procedural Due Process - Deprivation of property
occurs if there is a loss of entitlement of property, or the reasonable expectation of continued receipt of a benefit
96
Three part balancing test: In determining whether a notice and hearing are required, a court balances:
(1) the importance of the interest to the individual;
(2) the value of specific procedural safeguards to that interest; AND
(3) gov's interest in fiscal and administrative efficiency
97
Substantive Due Process Approach
I. State Action
II. Standing
III. Rule
IV. Fundamental Right/Privacy: SS
V. Non-Fundamental Right: Rational Basis
98
Substantive Due Process
A violation of substantive due proess under the 5th am occurs where the law limits the liberty of all persons to engage in some particular activity. It applies to the states via the 14th AM. When a fundamental right is limited, the law or action is evaluated under the SS standard. In all other cases, RB standard is applied.
99
Fundamental rights include
contraception, no longer extends to abortion (Dobbs), marriage, parental rights, family relations, right to refuse medical treatment
100
Takings Clause
5th Am provides that private property may not be taken for public use without just compensation. The 5th Amendment's takings clause is applicable to the states via the 14th Am.
101
Actual Taking
occurs when there is a government confiscation or physical occupation of the property that leaves no economically viable use for the property
102
Partial taking
regulations that merely decrease the value of the property may or may not be a taking.
103
A court will determine whether there is an actual or partial taking by considering:
(1) The social goals to be promoted
(2) Diminution in value to the owner, and
(3) The owner's reasonable expectations regarding the property
104
Public Use
The public use requirement is satisfied so long as teh gov acts with the reasonable belief that the taking will benefit the public (ie health, safety, welfare, economic, or aesthetic decisions)
105
Just Compensation
The gov is required to :
(1) Pay the property owner just compensation for the property measured by the loss to the owner, not by the gain to the government, or
(2) Terminate the regulation and pay the owner for damages incurred while the regulation was in effect.
106
First Amendment
Provides the freedom of religion, assembly, press, and speech (RAPS). This applies to the states via the 14th amendment.
107
Freedom of Religion - First AM
Establishment clause of 1st Am provides that the government shall not establish a religion. To determine whether the Establishment Clause has been violated, courts look first to whether a particular sect was preferred or not by the government
108
Sect Preference - establishment clause
Where the government regulation directly prefers one sect over another, the action will be invalid unless it meets the strict scrutiny test.
109
Free Exercise Clause (part of freedom of religion)
Contains both the freedom to believe in any religion and the freedom to conduct one's self in accordance with any religion.
*Neutral laws of general applicability with no intent to infringe on free exercise but happen to prohibit religious activity are allowed under 1st Am
110
Beliefs (part of free exercise clause)
Gov regulations that indirectly impose burdens on people of certain religions will be upheld if the gov can show the regulation is necessary to achieve a compelling state interest. The religious belief must be sincerely held to qualify for protection under the Free Exercise Clauses.
111
Sincerely held belief (part of beliefs of free exercise clause)
In testing whether a belief is sincerely held, courts CANNOT consider:
(1) whether the tenets of religion are true
(2) Whether it's a traditional religion, and
(3) Whether the tenets of religion are derived from a supreme being
112
Conduct (free exercise clause)
Gov regulations that prohibit certain religious activities will be upheld unless they specifically target religious practices. When specific religious practices are targeted, the gov has the burden of proving its actions are necessary to achieve a compelling state interest.
113
Freedom of Association
the 1st Am, applicable to the states via the 14th Am, prohibits gov from punishing individuals due to membership in a group, UNLESS gov can prove that:
- Person actively affiliates with the organization;
- Knowing its illegal objectives;
- With the intent to further illegal activities
114
Infringement of rights is ok, IF (Freedom of association)
Necessary to achieve a compelling gov interest (SS) AND the state interest is unrelated to suppression of speech
115
Loyalty oaths (freedom of association)
OKAY (if not overbroad or vague):
* Promise not to advocate overthrow of the gov: TOO Vague
* Promise not to advocate unlawful overthrow of the gov: OKAY
116
Restrictions on gov employee behavior (Freedom of association)
** Can prohibit from taking an active part in political campaigns
** Cannot fire them for belonging to a political party, EXCEPT where relevant (ie working for a political campaign)
117
Disclosure of membership lists (Freedom of Association)
The gov cannot force disclosure of every member in exchange for a gov benefit
118
Freedom of Speech
1st AM, applicable to states via the 14th Am, prohibits gov't from enacting laws that abridge freedom of speech
119
Facial attacks
Courts first look to whether the regulation is a prior restraint, is vague, over-broad or permits gov officials to have unfettered discretion.
120
Facial attacks 1st Am - Vague
A law will be unconstitutionally vague if a reasonable person could not tell what speech is or is not prohibited.
121
Facial attacks 1st Am - Overbroad
A law is unconstitutionally overbroad if the regulation punishes a substantial amount of protected speech as well as unprotected speech.
122
Facial attacks 1st Am - Prior Restraint
PRs are regulations that prohibit speech before it occurs. To pass constitutional muster, the gov has the burden of showing that the PR is necessary to prevent some special societal harm. (NOTE: discuss elements of necessity and special societal harm)
123
Procedural safeguards for prior restraints
Any system in place for a PR must contain certain procedural safeguards, including:
(1) Standards that are narrowly drawn, definite and reasonable
(2) An injunction that must be promptly sought, and
(3) There must be a prompt and final determination of the validity of the restraint
124
Facial attacks 1st Am - Unfettered Discretion
A regulation that gives gov officials unfettered discretion to determine what speech is prohibited and what is not is void on its face. A speaker may challenge the regulation before applying for a permit. However, if there are "intelligible standards" for the gov official, the speaker must apply for and get rejected for a permit before challenging on this ground.
125
Content-based v. content-neutral
Whether or not free speech has been violated depends on whether the regulation of speech is content-based or content-neutral. If it is content-based, courts distinguish between protected and unprotected speech.
126
Content-based protected speech
A content-based regulation seeks to prohibit the expression of certain subject matter or viewpoint. When such regulations impact protected speech, they are subject to SS.
127
Content-based unprotected speech
Courts have determined that the gov has a per se compelling interest in prohibiting certain types of speech, now commonly referred to as the "unprotected categories of speech,"
128
Content-based unprotected speech: Unprotected categories include:
incitement, fighting words, obscenity, defamation
129
Incitement
The gov does not protect speech that:
(1) Encourages imminent illegal activity
(2) Where there is a substantial likelihood of illegal activity
130
Fighting Words
Personally abusive words likely to incite imminent physical retaliation in an average person are not protected.
131
Obscenity
Material is obscene and thus unprotected if:
(1) It appeals to the local prurient interest (local standard)
(2) It is patently offensive under the law (local standard) an d
(3) Taken as a whole, it lacks serious redeeming scientific, literary, artistic, or political value (NAtional standard SLAP)
The USSC has held that the Constitution protects the private possession of obscene material for private use but it does not protect the commercial distribution of obscene material or the use of mail for such distribution.
Look for zoning laws that are permissible
132
Defamation
Const defamation arises when D's statements deal with a matter of public concern, and P must prove two additional elements: (1) Falsity and (2) Fault
133
Matter of Public Concern (Defamation)
To determine whether a matter is a public or private concern, the court will look to the content, form and context of the publication
134
Falsity
The statement is presumed true so P must show it is false
135
Fault
The type of fault P must prove depends on whether the P is a public figure or private figure. If P is a private figure, negligence must be shown. If P is a public figure, malice must be shown.
136
Public v. Private Figure (Defamation)
A public figure is a person who has achieved fame or notoriety or voluntarily assumes a central role in a particular public controversy.
137
Negligence
P must show that D had a duty to act as a reasonable person under the circumstances, D breached that duty, causing damage to P.
138
Malice
shown when D knew or should have known that the statement was false or acted with reckless disregard as to its falsity.
139
Other speech issues
symbolic speech, commercial speech, campaign contributions
140
Symbolic speech
The gov can regulate conduct that communicates if:
(1) it furthers an important gov interest unrelated to suppression of the message, and
(2) if the impact on the communication is no greater than necessary to achieve the govs purpose
141
Commercial speech
A regulation on commercial speech must:
(1) Directly advance a substantial gov interest
(2) In a way that is narrowly tailored to achieve that objective.
Commercial speech that proposes unlawful activity or fraud is not protected
142
Campaign contributions
The gov regulates campaign contributions as speech and such regulations must be:
(1) Closely drawn
(2) to match a sufficiently important gov interest
143
Content-neutral speech
C-N regulations are those that do not prohibit the subject matter or viewpoint of speech but prohibit speech or conduct in its entirety based on the time, place and manner of expression. Whether th e gov can regulate the speech or conduct depends on the forum in which it occurs - public forum, limited public forum, non-public forum, or private place.
144
Traditional Public Forum
is a place where speech is traditionally permitted, such as a public park. The gov may regulate speech or conduct in public forums it:
(1) The regulation is content-neutral,
(2) it is narrowly tailored
(3) to serve a significant gov interest, and
(4) there are alternative channels of communication left open
145
Designated Public Forum
A designated public forum is one that is not historically open to speech or conduct but has been designated for such a purpose by the government, such as a school. Regulations in these forums must satisfy the same standards as that of a public forum.
146
Non-public forum
Non-public forums are government owned property that are not open to speech or conduct. Speech and conduct may be regulated if:
(1) The regulation is viewpoint neutral
(2) The regulation is reasonably related, and
(3) there is a legitimate gov purpose
147
Private place
Generally no 1st Am right to speech (ie privately-owned shopping mall)
148
Freedom of Press
The press generally has no greater freedom to speak than the public.
149
Freedom of Press - Right to Attend Criminal Trials
Can be outweighed by overriding government interest and no less restrictive means
150
Freedom of Press - Testifying at Grand Jury
Requiring a journalist to appear/testify before the federal or state Grand Jury does NOT abridge freedom of speech or press
151
Freedom of Press - Broadcast
may regulate radio/tv because limited frequencies
152
Freedom of Press - Prior Restraints on Press
Only exceptionally rare circumstances may gov obtain injunction against printing/airing a story
153
Freedom of Press - Taxation
Cannot tax media unfairly
